Naturalization granted but appellate court seems dubious

Sunday, January 23rd, 2011
By: Jonathan MontagJ.D.

In this blog, I usually address cases in the Ninth Circuit and do not rummage around in other circuits. However, today I am interested in a case out of the 4th Circuit, which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina. It sits in Richmond, Virginia, which was the capital of the Confederacy.

The case is Cody v. Caterisano. In the case, Mr. Cody, who is an Irishman, was accepted into the United States Naval Academy. Ordinarily, according to the case, when a foreigner goes to the Naval Academy, he or she has to serve in the armed forces of his or her home country after graduation. In this case, after being admitted, Ireland pulled the plug on funding. Private donors paid Mr. Cody’s way. He went through the academy and graduated. He then wanted to serve as a commissioned officer in the United States Navy but could not because he was not a United States citizen. According to INA § 329, a foreigner can become a United States citizen if he or she served on active duty during a time of military hostilities. As of February 14, 2010, Congress changed the law to allow Selected Reservists and Ready Reservists to naturalize this way too. The United States has been in such a period since September 11, 2001, based on an unrescinded order of President George W. Bush.

Mr. Cody filed his naturalization application in March 2008. In August 2008 he was interviewed. Having gotten no decision by March 2009, he filed a lawsuit pursuant to INA § 336(b), which allows an applicant to sue in a federal district court if there is no decision within 120 days of the interview. At issue in the case was whether being a midshipman in the Naval Academy was active duty. At first the Navy provided a document, a Form N-426 verifying that Mr. Cody’s service as a midshipman was a period of active duty, but then the Navy retracted it and issued one that said that he was not. The district court decided to ignore both iterations of the N-426 and decided that Mr. Cody was on active duty while a student at Annapolis and swore him in as a citizen. The district court reasoned, according to the Court of Appeals:

Petitioner “has done everything required of midshipmen who are United States citizens and has served honorably . . . ; he has received certifications, other letters of support, and a legal opinion documenting his active-duty status”; and he has “been ‘constructively inducted’ into active-duty in the Navy based on his rank of ‘midshipman’ and his performing the duties of a service member.”

The Court of Appeals noted that the government did not appeal the decision.

Well, if there was no appeal, how did this case get to the Fourth Circuit Court of Appeals and become a published decision? Money. The lawyer’s femme in, “Cherchez la femme.” According to the Equal Access to Justice Act (EAJA), “[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.”

Mr. Cody and his lawyer asserted that they deserved fees in the case because they prevailed and that the government was unjustified both because of the delay in its decision and because the original N-426 said that Mr. Cody was on active duty and thus USCIS should have granted naturalization right away.

The Fourth Circuit then reviewed the case. Without bothering to repeat over and over that Mr. Cody and his lawyers were “honorable men,” like how Mark Antony eulogized Caesar in Julius Caesar, appearing to show respect for Brutus while slicing him up, the Court listed all the weaknesses in Mr. Cody’s case – some overtly and some somewhat stealthily, while not directly attacking the district court’s decision. Here they are:

1. The most recent N-426 of the Navy stated that Mr. Cody was not on active duty;

2. A dangerous precedent would be set for other foreign-national midshipman;

3. The district court judge said Mr. Cody was “constructively inducted” into active duty;

4. Mr. Cody never took the “Oath of Office,” but rather an “Oath of Compliance,”

5. Mr. Cody bears the burden to prove his eligibility for citizenship and doubts should be resolved in favor of the government;

6. The statute at INA § 329(a) leaves it to the “executive department under which such person served… [to] determine whether such persons have served honorably in an active-duty status….”

7. A case in the 9th Circuit from 1982, Jacobs v. United States, held that military education before being commissioned as an officer does not count as active duty service;

8. According to 10 U.S.C. § 6959, “The Secretary of the Navy may . . . order to active duty for such period of time as the Secretary prescribes . . . a midshipman who breaches an agreement [regarding service in the armed forces upon graduation from the Academy].” The Government reasoned that if a midshipman could be ordered to active duty while at the Academy, his attendance at the Academy could not also constitute active duty;

9. According to 10 U.S.C. § 971, officers cannot count service performed as midshipmen at the Academy towards service credit. If attendance at the Academy as a midshipman does not be counted toward the length of time an officer served, the Government argued, such attendance was not the same as active duty;

10. Two other cases, a 1948 case in the 1st Circuit, and a 2000 case in the 9th Circuit, concluded that time served in the Reserve Officers’ Training Corps (ROTC) was not active-duty service. (The 9th Circuit case, an unpublished one, relied solely on the fact that the Navy’s not certifying the applicant as having been on active duty. The court would not review that decision because the Navy was not a party in the lawsuit.);

11. The legislative history of INA § 329 is that the statute was to reward the risk inherent in combat or the potential for combat, which a midshipman in service at an Academy does not face.

The Court of Appeals did not need to write all this. It could have limited its decision to one paragraph in its decision:

The district court’s consideration of these arguments is clear from the record, which includes a transcript of a hearing where the court thoroughly questioned counsel for both parties about their positions. As a result, though the district court’s order denying Petitioner’s request for EAJA fees only briefly explained the court’s reasoning, both the order and the record reflect that the district court considered the arguments of both parties to be reasonable. We agree. In this case of first impression, the Government made reasonable arguments based on statutory interpretation and analogous cases. The district court, therefore, did not abuse its discretion in deciding the Government’s position was substantially justified.

Why all the rest? I can only speculate. Perhaps the Fourth Circuit was signaling that the government should have appealed and had it appealed, it would have won. Perhaps it was signaling all foreign military academy graduates that if they put in their applications for naturalization they will not be as lucky as Mr. Cody. It is worth noting that nothing in the decision of the district court limits the application of INA § 329 to service academy attendees. Nothing indicates that it would not apply to foreign students at other military training institutions if they were assigned to the school or a unit or to unique units like KATUSA units. Perhaps the court is telling the Department of Justice that if they want to try to move against Mr. Cody’s naturalization based on a clearer exposition of the law, they now have one. Seeking fees stirred the sleeping cat in Richmond, where Robert E. Lee is venerated, and who said, “We must expect reverses, even defeats. They are sent to teach us wisdom and prudence, to call forth greater energies, and to prevent our falling into greater disasters.” To the extent that Mr. Cody’s naturalization is in jeopardy, he would have been better off accepting his victory and walking away without looking for money. It remains to be seen whether his fight is over. Posted January 23, 2011.



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